The Targeted Killing Memo: A Weak Brief Begging for a Court Case

By Andrew Cohen

The Obama Administration finally offers up its legal justifications for drone strikes, describing a shaky policy that already is being challenged in federal court.

Andy Clark/Reuters

It comes years too late for U.S. born Anwar Al-Awlaki and his teenage son, born in Denver, who both were killed by U.S. drone strikes in 2011. And it comes years too early for any Supreme Court review. But it seems to me that there are at least two ways to view the Justice Department's newly leaked "White Paper," which at long last identifies some of the legal justifications for the extrajudicial killings abroad of certain American terror suspects.

You may consider the pronouncements contained in the memo the official policy of the United States, in which case the document represents a breathtaking vitiation of the most basic constitutional right that Americans have -- the right not to be suddenly killed by our government without any judicial review, based alone on secret evidence and classified accusations leveled by and to executive branch officials.

Alternately, you can consider the 16-page memo as a brief offered up for review and consideration by one branch of government, an advocate's paper designed to carve out a vast expanse of executive branch power while practically daring the other two branches of government to do something about it. Can't you hear the DOJ lawyers telling one another as they jotted down their grand conclusions: "Let's run this one up the flagpole and see who salutes"?

Just 24 hours or so after NBC's Michael Isikoff broke this big story, most of the commentators who have read the memo (including The Atlantic's own Conor Friedersdorf) have analyzed it as the policy of the Obama Administration. Fair enough. I'd like to focus here instead on the notion that this is more like a brief in search of a case; an argument in search of a response; the sound of one hand clapping.

This is, you could argue, yet another aggressive memo written by a bunch of lawyers to justify what their client wants to do -- a scenario replicated a million times each year in law offices all over this country. It is a memo whose conclusions have never before been addressed by the courts. It is a memo the rationale for which has never been debated adequately on Capitol Hill. It's a pitch, the staking out of a position in advance of a Washington battle yet to come.

So while I'm willing to accept that this represents this administration's policy toward such terror suspects, I'm not remotely ready to conclude that this policy is either constitutional or likely to survive a political challenge from Congress. Indeed, the nature of presidential power being what it is, almost as disturbing as the conclusions in this memo is the timidity shown (so far) by federal judges and lawmakers in refusing to challenge it.

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Here are five quick takeaways from the memo:

1. Lack of judicial review. It's not just that the executive branch wants to decide for itself which U.S. citizens can be killed abroad. It's also that the administration sees no role whatsoever for the courts in reviewing such a policy, either before an American citizen is targeted abroad or after the killing takes place. From page 10 of the memo:

Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional questions. It is well-established that "matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention," because such matters "frequently turn on standards that defy judicial application," or "involve the exercise of a discretion demonstrably committed to the executive or the legislature" (internal citations omitted by me).

Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgment to mount a potential lethal operation against a senior operational leader of al-Qa'ida or its associated forces. And judicial enforcement of such orders would require the Court to supervised inherently predictive judges by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

This is a version of the same argument the Bush Administration offered up four times in four years before the United States Supreme Court. In each instance, in four cases, the justices refused to agree that the courts don't have the power to review terror law policies which directly undermine core rights. The idea that the justices couldn't hear the ultimate "due process" case -- due process in this instance being a secret White House national security meeting before a predator drone kills a suspect -- is inconceivable, even for the Roberts Court.

2. Hamdi. Speaking of the Supreme Court, it's ironic, to say the least, how many times the Obama lawyers cite the Supreme Court's 2004 decision in Hamdi v. Rumsfeldto justify the "lethal operations" policy. I counted at least eight times in 16 pages. But the Hamdi decision, you may remember, was a defeat for the Bush Administration over its detention policies. It was the decision in which Justice Sandra Day O'Connor declared: "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

Due process, the court's syllabus in Hamdi tells us, "demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Obama lawyers are citing this case for the proposition that no such "neutral decisionmaker" is necessary or required for the sudden killing of a US citizen abroad; that America may kill a U.S. citizen abroad without notice but must give him a hearing if were seek to detain him.

3. Congress. The very first specific argument the Obama lawyers make on behalf of their "lethal operation" policy, on page 2 of the memo, reminds the world that Congress is largely responsible for it. "Congress has authorized the President to use all necessary and appropriate force" against al-Qa'ida," administration attorneys argue, and federal lawmakers did so through the 2001 Authorization for Use of Military Force. The AUMF was enacted on September 14, 2001, while the fires at the World Trade Center site still smoldered.

All it would take to undercut the Obama Administration's "lethal operations" policy would be for Congress to expressly limit the extent of its granted authority. But this isn't that type of Congress -- and the White House knows it. By Tuesday afternoon, for example, Representative Mike Rogers, the Republican chairman of the House Permanent Select Committee on Intelligence, declared that he agree[d] with the Justice Department's conclusion that targeting a senior leader of al-Qa'ida is a lawful act of national self-defense in these circumstances."

A few years ago, many of these same lawmakers shamelessly precluded the White House from trying some of the Guantanamo Bay detainees in federal civilian court -- the president didn't have the power to do that, they claimed. But those same lawmakers today won't limit White House power to kill U.S terror suspects abroad or to otherwise limit the scope of their 2001 AUMF. Whether the White House's "lethal operations" policy is sound or not is almost besides the point -- it's evidently still good politics and that's really what counts.

4. Where no one has gone before. "There is little judicial or other authoritative precedent that speaks directly to the question," the Obama lawyers concede on page 4 of the memo. Later on that same page, they note that "the Department has not found any authority for the proposition..." Many other important assertions, all through the document, come not from courts of law or the texts of statutes but from executive branch officials. The man who will lead the CIA, John Brennan, is cited here. And so, a few times, is Harold Koh.

This constitutional self-justification is predictable in an area of the law -- really, the messy intersection of law, the military, diplomacy and realpolitik -- where there has been very little legal precedent. It is not uncommon for the executive branch to get way out ahead of the judicial branch when it comes to power acceded by the legislative branch. But it is also very common for the courts eventually to catch up. Whatever else this memo does as a political matter, as a legal matter it ought to stir the federal judiciary from its recent torpor.

5. The public authority justification. In order to justify its "lethal operations" policy, in order to comport with constitutional guarantees, the Obama lawyers can't just argue that Congress gave the president the legislative authority to do whatever is "necessary' to kill terror suspects. The White House also has to get around the federal laws which Congress has passed which specifically preclude the killing or attempted killing of "a national of the United States while such national is outside the United States..." This is Section 1119(b).

The Justice Department's argument about Section 1119(b) is particularly chilling because of its applications to domestic criminal law. "Congress did not intend [Section 1119] to criminalize justifiable or excusable killings," the Obama lawyers argue, just before arguing that it is up to the executive branch, not the judicial branch, to determine what is "justifiable or excusable." In other words, the same implied Congressional immunity the government has to execute American prisoners now would apply to the execution of American terror suspects.

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If the "White Paper" is really a brief in search of a case, I think I have found the case. In federal district court in Washington, D.C, there is today pending terror-law litigation in which many of the weighty conclusions offered by the Obama lawyers may be fairly tested. The case is styled Al-Aulaqi v. Panetta, named for the most famous American ever killed in a drone strike, and it offers the judiciary, and Congress, and by extension the rest of us, an opportunity to respond to the grand assertions of presidential power contained in this memo.

On Tuesday afternoon, a day or so after the leak of the memo, in a filing the timing of which may explain the timing of the leak, civil rights lawyers filed a brief in Al-Aulaqi asking a federal trial judge not to dismiss the case (as the Obama Administration has asked it to do). If you read one constitutional response to the "White Paper," you could do far worse than reading what lawyers for the American Civil Liberties Union and the Center for Constitutional Rights have come up with here. From the opening of their trenchant brief, filed late Tuesday:

This case concerns
the most fundamental right the Constitution guarantees to citizens: the right
not to be deprived of life without due process of law. Defendants respond with
various arguments for dismissal of the case, but they all boil down to a single
assertion: The Executive has the unilateral authority to carry out the targeted
killing of Americans it deems terrorism suspects -- even if those suspects do not
present any truly imminent threat, even if they are located far away from any
recognized battlefield, and even if they have never been convicted (or even
charged) with a crime.

The Executive can
exercise this authority, Defendants say, without presenting evidence to any
court before or after a killing is carried out and without even acknowledging
to any court that their claimed authority to kill has been exercised. Defendants
argue, in other words, that the Judiciary has no role whatsoever to play in assessing
whether the Executive's killing of American citizens is lawful. This argument
is exceedingly dangerous, and it is wrong.

Under our
constitutional system, the right to life is not entrusted to the Executive
alone. It should not require repeating that "[w]hatever power the United States
Constitution envisions for the Executive in its exchanges with other nations or
with enemy organizations in times of conflict, it most assuredly envisions a
role for all three branches when individual liberties are at stake." Hamdi
v. Rumsfeld, 542 U.S. 507, 536 (2004). ...

Outside the context of armed conflict, lethal force may be used only as a last
resort to counter an imminent threat of grave harm. The killings of Plaintiffs'
sons and 16 year-old grandson -- all American citizens -- violated this standard, in
part because officials have defined the term "imminent" so broadly as to negate
its plain meaning.

Even if the decedents
had been killed in the context of armed conflict, Defendants' actions would
have been illegal because the laws of war prohibit the use of lethal force
against civilians who are not "directly participating in hostilities" -- a
standard that requires a causal and temporal connection to actual hostilities.
And if the person targeted is directly participating in hostilities, measures
must still be taken to protect bystanders and minimize harm to civilians not
targeted.